Top 5 ESA Housing Rights Questions

Guidance Teletherapy patients often ask what their rights are when it comes to receiving treatment through their Emotional Support Animal (ESA).

These patients are considered disabled, mentally or emotionally, and therefore have certain rights, which include access to their ESA or service animal, according to the Americans with Disabilities Act (ADA).

The Air Carrier Access Act 49 U.S.C. 41705, Dept. of Transportation 14 C.F.R. Part 382 and The Fair Housing Amendments Act of 1988 are the laws that protect an emotionally disabled person and his/her ESA.

The legal protections for an Emotional Support Animal (ESA) are:

1. The right to fly with its psychologically disabled handler in the cabin of an aircraft, inside or outside a travel carrier, without the handle being charged a pet fee.

2. Qualification for no-pet housing (that also includes limited size, breed, or species housing) without being charged a pet fee (however, a landlord can require a refundable pet deposit).

In order to better advocate for our patients, Guidance Teletherapy drafted five common questions that ESA handlers ask when it comes to housing.

1. Weight and Breed Restrictions

“My landlord told me that their building policy on pets doesn’t allow for dogs over 65 pounds. Can my landlord deny my ESA who is that weight?”

A landlord cannot deny an ESA solely because of its weight. A building’s policies pertaining to pets do not apply to ESAs. ESAs are categorized as a type of assistance animal, and not a pet, under Fair Housing rules. The only two exceptions are: if your dwelling does not safely and comfortably accommodate your ESA, or if your ESA’s weight can be proven to cause severe financial hardship to the landlord.

“My ESA is a pitbull and my landlord is trying to deny him! Can she do that?”

A landlord cannot deny an ESA solely on the basis of breed. The Department of Housing has clearly stated that this is prohibited. Instead, landlords may only determine if the specific ESA in question may pose a direct threat to the health and safety of the other tenants. That determination has to be based on an individualized assessment of the ESA’s actual conduct, not on stereotypes about the breed. This means, whatever breed your ESA is, you must be able to handle them.

2. Pet Fees and Pet Deposits

“My landlord told me he won’t rent to me until I pay a pet deposit? Can he do that?”

Landlords are not allowed to charge pet fees or nonrefundable pet deposits in connection with ESAs. Pet fees and nonrefundable pet deposit policies are for pets, which an ESA is not. As previously noted, conditions that landlords place on pets do not apply to ESAs. That means that while landlords can require applicants or residents to pay a nonrefundable pet deposit or a monthly pet fee, they cannot request these for your ESAs. Your landlord can, however, require a refundable pet deposit to protect against any damages. You are liable for any harm your ESA causes to the property or other people.

3. Request Forms

“My property manager said I had to have my therapist fill out a form before they could approve my application. Is this allowed?”

Landlords can request for potential tenants with ESA’s to have the treating mental health professional who certified their ESA complete additional paperwork. Some use forms provided by HUD, while others have internal documents that they’ve created. This ensures the landlord has a paperwork trail that a request for a reasonable accommodation was made. Guidance Teletherapy patients can email their form to their treating clinician, who will then fill it out and return it in 1-3 business days.

4. Common Areas

“My landlord stopped me from bringing my ESA to the courtyard garden. Can he prevent me from bringing my ESA to a common area?“

No, a landlord cannot prevent you from bringing your ESA to the common area of a building. The laws pertaining to ESAs were designed to allow individuals with disabilities to enjoy the premises of their homes to the same degree as their non-disabled neighbors. The Department of Housing has stated that an ESA is allowed “in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.” That would include both the residence and the common areas of the building.

5. Exceptions

“My building has 3 units, and the owner lives in one of those units. Can the landlord deny my ESA?“

There are some exceptions under the Fair Housing Act. Your landlord can deny under the following circumstances:

1. If the animal is too large for the accommodation size. For example, a horse or a llama may be rejected from a small studio apartment. Please note that Guidance Teletherapy clinicians are only trained in human-feline and human-canine bonding interactions and therefore would not prescribe an ESA horse or llama.

2. An owner-occupied building with no more than four units

3. If the dwelling is a single-family house that was rented without a realtor, and the owner owns less than 3 single family homes (including their own).

4. Housing operated by religious organizations

5. Private clubs that limit occupancy to members.

6. If the animal in the unit brings undue financial hardship to the landlord.

7. If the animal causes damage or harm to others in the building.

If your housing falls into any one of those categories, your landlord doesn’t have to accommodate ESAs. Despite this, some landlords of these types of dwellings will make exceptions out of courtesy. It’s better to ask first.

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